Rex v Interwork Ltd - [2010] SAEOT 2

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
REX v INTERWORK LTD
[2010] SAEOT 2
Judgment of Her Honour Judge Cole
27 July 2010
ADMINISTRATIVE LAW
Non-lawyer seeking to represent a party pursuant to s 24(4) of the Equal Opportunity Act - whether leave is required - advocate's application for leave to represent refused.
Equal Opportunity Act 1984; Fair Work Act 1994; Fair Work Act 2009 (C'wlth); Legal Practitioners Act 1981; Magistrates Court Act 1991, referred to.
Giancaspro v SHRM (Australia) Pty Ltd [2005] SASC 340; Damjanovic v Maley (2002) 55 NSWLR 149, considered.

REX v INTERWORK LTD
[2010] SAEOT 2

This is a decision in relation to an interlocutory application. Mr Andrew Knox has sought leave pursuant to s 24(4)(b) of the Equal Opportunity Act 1984 to represent Ms Patricia Rex in her complaint against Interwork Limited (“Interwork”) before this Tribunal. Mr Knox is not a legal practitioner. He is a registered agent pursuant to the Fair Work Act 1994. Ms Charlesworth, counsel for Interwork, opposed the application.
The Equal Opportunity Act 1984 provides, in s 24(4):
A person appearing in proceedings before the Tribunal –
(a) is entitled to appear personally or by counsel; or
(b) may, by leave of the Tribunal, be represented by an officer or employee of a registered industrial association or by any other person.
At the hearing of the interlocutory application, Mr Knox first asserted that he was “counsel”, and therefore entitled to appear pursuant to s 24(4). I reject this submission. Taking into account the ordinary meaning of the word, together with its context, “counsel” in s 24(4) of the Equal Opportunity Act means a legal practitioner who has a right of appearance in the State of South Australia. Mr Knox requires the leave of the Tribunal to appear in this matter.
The Legal Practitioners Act 1981 provides, relevantly:
S 21(1)A person must not practise the profession of the law, or hold himself or herself out, or permit another to hold him or her out, as being entitled to practise the profession of the law unless –
(a)in the case of a natural person, the person –
(i)is a local legal practitioner; or
(ii)is an interstate legal practitioner; or
(b)in the case of a company, it holds a practising certificate issued and in force under this Act.
…
(2)    Without limiting the generality of subsection (1), but subject to subsections (3) and (3a), a person practises the profession of the law, if acting for fee or reward on behalf of some other person he or she –
(a)…
…
(e)represents any party to proceedings in a court or tribunal.
(3)     This section does not prevent –
(a)…
…
(g)an unqualified person from representing a party to proceedings in a court or tribunal for fee or reward, if the person is authorised by or under the Act by which the court or tribunal is constituted, or any other Act, to do so;…
…
(4)     For the purposes of this Act –
(a)…
…
(c)a person represents a party to proceedings before a court or tribunal if the person –
(i)prepares, on behalf of that party, any legal process relating to the proceedings; or
(ii)takes instructions from or gives advice to that party in relation to the conduct of the proceedings; or
(iii)takes, on behalf of that party, and other step in the proceedings;
…
The Fair Work Act 1994, in Chapter 5, Part 1, Division 2, provides that a legal practitioner or a registered agent may represent a party in proceedings before the Industrial Relations Court of South Australia or the Industrial Relations Commission of South Australia (see s 151). The Fair Work Act 1994 provides for the maintenance of a register of registered agents by the Industrial Registrar (s 152(1)). There are prerequisites to registration (s 152(2)). The establishment of a code of conduct for registered agents is provided for, including the regulation of the fees to be charged by registered agents (s 152(5) and (6)), and a procedure for disciplinary action in relation to registered agents is provided for (s 152A).
Mr Knox argued, in summary, that the existence of a system of registered agents under the Fair Work Act 1994 evidenced an intention on the part of the Parliament to allow registered agents to represent litigants in all Courts and Tribunals, including the Equal Opportunity Act 1984, where the issues to be litigated related to an employment relationship. I reject this argument. It flies in the face of the plain words of the legislation. The Fair Work Act 1994 expressly provides for the representation of litigants by registered agents only in the Industrial Relations Court and the Industrial Relations Commission. It does not address the question of representation in the Equal Opportunity Tribunal. The Equal Opportunity Act 1984 does, however, address that question in s 24(4), which is quoted above. Mr Knox argued that if Parliament had meant to exclude registered agents from appearing in the Equal Opportunity Tribunal, there would be an express provision in the Equal Opportunity Act 1984 to that effect. I reject this submission. The Equal Opportunity Act 1984 provides clearly in s 24(4) that a person in Mr Knox’s position requires the leave of the Equal Opportunity Tribunal to represent a party.
Mr Knox referred to s 38(4)(d) of the Magistrates Court Act 1991, which provides that, in minor civil actions, the Magistrates Court will permit a person to be represented by a person who is not a legal practitioner, “but only if that person is not acting for fee or reward”. Mr Knox argued, in effect, that if it had been intended that a person who was not a legal practitioner would be prevented from charging a party for representing that party in the Equal Opportunity Tribunal, then the Equal Opportunity Act 1984 would have said so expressly. I reject that submission. The provisions of the Magistrates Court Act 1991 cited by Mr Knox appear in a different context from s 24(4) of the Equal Opportunity Act 1984. The principal purpose of s 38(4) of the Magistrates Court Act 1991 is to prevent legal practitioners from appearing in minor civil actions, except in limited, specified circumstances.
Mr Knox argued, in effect, that s 21 of the Legal Practitioners Act 1981 has been impliedly amended by s 24(4) of the Equal Opportunity Act 1984, in that, by omitting to provide expressly that an agent given leave to represent a party before the Equal Opportunity Tribunal could not charge a fee, the Equal Opportunity Act 1984 implicitly permits the charging of a fee in those circumstances. I reject that argument. It is clear that the provisions of the Legal Practitioners Act 1981 and the Equal Opportunity Act 1984 may both operate in accordance with their terms without the necessity to read either of them down. An agent who represents a party before the Equal Opportunity Tribunal with the leave of the Tribunal, will commit an offence against s 21(1) of the Legal Practitioners Act in the event that that agent acts for fee or reward. The wording of s 21(3)(g) of the Legal Practitioners Act, quoted above, anticipates that other Acts may provide for an unqualified person to charge a fee for representing a party before a Court or Tribunal. The Equal Opportunity Act 1984 does not do so. I note that the Equal Opportunity Rules 1988, which contain provisions relating to costs, clearly anticipate that those provisions will be applicable only to legally qualified representatives.
Mr Knox argued that a “nexus” exists between the Fair Work Act 1994 and the Equal Opportunity Act 1984 by virtue of s 100 of the Equal Opportunity Act 1984, which provides that, if a person brings proceedings under the Fair Work Act 1994, or the Fair Work Act 2009 (C’wlth) in respect of dismissal from employment, and those proceedings are determined, then that person cannot institute or prosecute proceedings in respect of that dismissal under the Equal Opportunity Act 1984. There is no basis for reading anything further into s 100. Mr Knox, I think, meant to imply that s 100 somehow created a single system for matters to do with employment, so that his ability to appear under the Fair Work Act 1994 was automatically imported into the Equal Opportunity Tribunal. There is simply no basis for that argument, and I reject it.
Ms Charlesworth, counsel for the respondent, referred to the decision of Bleby J, with whom Doyle J and Gray J agreed, in Giancaspro v SHRM (Australia) Pty Ltd[1]. In that case, the Full Court was considering (among other things) an application by a lay advocate to appear on behalf of an appellant appealing to the Full Supreme Court from a decision of the Full Industrial Court. Bleby J was dealing with the inherent power of the Supreme Court to allow a non-lawyer to represent a party. That power is analogous, however, to the statutory power conferred on the Equal Opportunity Tribunal by s 24(4), and the principles and considerations discussed by Bleby J have application in the present case. By reference to the decision of the New South Wales Court of Appeal in Damjanovic v Maley[2], Bleby J set out five factors relevant to the exercise of the power, beginning at paragraph 13 of the judgment:
First was the complexity of the case, non-legal representation being less likely to be allowed in a case of some complexity.
Secondly were genuine difficulties of the unrepresented party, such as unexpected language difficulties and emergencies.
The third relevant factor was the unavailability of disciplinary measures and a duty to the court by lay advocates. This is a matter of some significance mentioned in most of the cases. As Stein JA pointed out, the court is entitled to place reliance on the duty of a legal practitioner to act with candour towards the court and not knowingly to mislead the court, on pain of disciplinary measures being taken against him or her. That is not the position of a lay advocate. Stein JA further observed “With unqualified and uninsured lay advocates the court loses the benefit of the overriding duty and clients are at a distinct disadvantage.”
Fourth was the protection of the client and the opponent, clients being placed at a considerable risk at the hands of unqualified, unaccredited and uninsured lay advocates.
In the fifth place, the court pointed out that inferior courts and tribunals, with large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons, usually because the matters are less complex, but that higher courts would be less likely to grant leave.
Finally, as recognised in O’Toole v Scott (1965) 65 SR (NSW) 113, the guiding principle in the exercise of the discretion is “the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers”. Stein JA quoted with approval an observation of the present Chief Justice of the High Court:
The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to courts by skilled professionals. To the extent to which that assumption breaks down, so does the system.
None of the factors which I have mentioned would favour the granting of leave in this case. As will be seen, the matter is one of some legal complexity, and many of the problems which have arisen along the way might well have been avoided if the applicant had had competent legal representation.
[1] [2005] SASC 340
[2] (2002) 55 NSWLR 149
I will deal with each of these factors in turn.
1. The complexity of the case
Mr Knox has filed “Particulars of Complaint” which runs to 17 pages and 73 paragraphs. Much of it is factual allegations, and it is not at all clear how a great deal of that factual material relates to a complaint under the Equal Opportunity Act 1984. The Particulars are confused and confusing. Ms Charlesworth complained, with justification, that they raise issues beyond the scope of the Equal Opportunity Act 1984. The impression given by the “Particulars of Complaint”, in any event, is that the case is one of very considerable complexity. As matters stand at this stage in the proceedings, that complexity seems to be partly attributable to the circumstances of the matter, and partly attributable to Mr Knox’s approach to the matter. This factor weighs in favour of refusing Mr Knox’s application.
2. Difficulties of the unrepresented party
Mr Knox, in his written submission, said that Ms Rex had been under medical treatment for stress since 14 December 2009. In his written submissions he went on to say:
She is not sufficiently financially independent to deal with the horrendous cost of hiring a firm of lawyers and counsel.
There was no suggestion of any other difficulty. Ms Rex’s health weighs in favour of granting the application. I am unable to compare the relative costs to Ms Rex of the various forms of representation available to her, as that information is not before me. I note, however, that representation at a cheaper rate which has the effect of prolonging and complicating a matter may result in greater expense to Ms Rex than representation at a higher rate which results in the efficient disposal of the matter.
3. Unavailability of disciplinary measures and a duty to the Court
It was implicit in Mr Knox’s argument that, if he represented Ms Rex before the Tribunal, the disciplinary measures available in relation to him under the Fair Work Act would apply. That is clearly not so.
As I have mentioned above, there is no scale of costs applicable to a non-lawyer representative in the Equal Opportunity Tribunal. This is to be expected, given that it is not anticipated that a non-lawyer would be able to charge. If I am wrong, however, and Mr Knox is correct in his argument that he may charge if he is given leave to appear, then the absence of a scale of costs is concerning.
4. The protection of the client and the opponent
From his pleadings, his outline and his oral submissions, it is evident that Mr Knox is emotionally involved in this case; specifically, that he is angry with Interwork and its representatives. It is equally evident that the boundaries of the case which can properly be conducted in the Equal Opportunity Tribunal are not at all clear to Mr Knox. Ms Charlesworth raised a concern about subjecting the witnesses for the respondent to cross examination by Mr Knox in all of the circumstances of this case. There is some basis for that concern.
5. The nature of the Tribunal
Bleby J said in Giancaspro that inferior Courts and Tribunals were more likely to grant leave to unqualified persons, usually because the matters were less complex. It seems to me that the Equal Opportunity Tribunal, generally speaking, having regard to the nature of its jurisdiction, may be more likely than other Courts and Tribunals to be inclined to grant leave to appear to a non-lawyer. A person with some experience in appearing before other Courts, such as a registered agent under the Fair Work Act may, in general, be more likely to be given leave to appear in the Equal Opportunity Tribunal. However, these considerations must be balanced against the complexity of the matter and viewed having regard to factor 6, below.
6. The interests of justice
Having regard to the documents before me, and the conduct of the argument in this interlocutory application, it does not seem to me that the effective, efficient and expeditious disposal of litigation would be served by giving Mr Knox leave to represent Ms Rex. The “Particulars of Complaint” are not presently in a state which discloses clearly a basis for the appellant’s complaint under the Equal Opportunity Act 1984. A great deal of material pertaining to issues relevant to other legislation appears in the “Particulars of Complaint”. The respondent cannot sensibly answer the “Particulars of Complaint” in their current form. From the documents and oral argument before me, it is predictable that lengthy pre-trial processes will be necessary if Mr Knox is to continue to represent Ms Rex, both in relation to particulars and in relation to discovery. Such processes may either be unnecessary, or less protracted with alternative representation.
It is a matter of concern that the “Particulars of Complaint” seek:
Costs on the grounds of a Calderbank offer, the contents of which will be relied on after judgment) [sic] and the conduct of the respondent from 3 December 2009 [sic].
Summary and Conclusion
I reject Mr Knox’s submission that he is “counsel” and does not require leave to appear for Ms Rex before this Tribunal. I reject his submissions that his status as a registered agent under the Fair Work Act 1994 gives him a right of appearance in this Tribunal.
The Equal Opportunity Act 1984, in s 24(4), provides for a person in Mr Knox’s position to seek the leave of the Tribunal to appear. There is no provision in the Equal Opportunity Act 1984 for such a person to charge a fee. The charging of a fee by such a person would constitute an offence pursuant to s 21(1) of the Legal Practitioners Act 1981. Section 21(3)(g) of the Legal Practitioners Act 1981, quoted above, contemplates that some Acts may provide for a non-lawyer (perhaps with leave, perhaps by right) to represent a party in a court or tribunal for a fee. The Fair Work Act 1994 is such an Act. The Equal Opportunity Act 1984 is not such an Act.
Taking into account all of the factors in Giancaspro as they apply to this matter, some of which weigh in favour of Mr Knox’s application, and some of which weigh against, the balance is very much in favour of refusing Mr Knox’s application.
Mr Knox’s application pursuant to s 24(4) of the Equal Opportunity Act 1984 for leave to represent Ms Rex is refused.